MOTION FOR VARIANCETRACY CHILTON, )) D e f e n d a n t. ) DE FE NDANT'S SENTENCING MEMORA UM AND MOTION FOR VARIANCE I nt r oduc t i on Tracy Chilton will be sentenced on …

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) No. 13-CR-00070-LMB

)

TRACY CHILTON, )

)

Defendant. )

DEFENDANT'S SENTENCING MEMORANDUM ANDMOTION FOR VARIANCE

Introduction

Tracy Chilton will be sentenced on October 16, 2013. The parties have agreed that

probation is the appropriate sentence. The well-prepared Presentence Investigation Report

concludes that Tracy’s sentence is a Level 12 Criminal History Category I, which produces

an advisory Guideline range of 10-16 months. In accord with the parties’ agreement, Tracy

intends to request that this Honorable Court vary from this advisory Guideline range and

impose a 12 month sentence of probation.

Gall requires that before making any sort of final sentence the Court must make

Guideline calculations. Here the calculations would result in a Zone C sentence where

probation is not possible. Gall has breathed life back into the statutory analysis of sentencing

contained in 18 U.S.C. Section 3553 and removed the specter of this Honorable Court feeling

obligated to reject the parties’ agreement of probation and sentence Tracy to prison.

Gall v. United States

This case is a perfect illustration of the brilliance of Gall and shows why a statute

trumps an advisory Guideline. In one paragraph of the PSR, it states, “because Count 1 is

a misdemeanor, the defendant is eligible for up to 5 years of probation. 18 U.S.C. Section

Case: 1:13-cr-00070-LMB Doc. #: 11 *SEALED* Filed: 10/01/13 Page: 1 of 19 PageID #: 60

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3561(c)(2).” In the very next paragraph, citing USSG §5B1.1 comment note 2, the PSR

states that because Tracy is a Zone C, he is not eligible for probation. Pre-Gall a sentencing

Court would have had to sentence Tracy to jail, but post-Gall this Honorable Court can rely

on the language of the statute which allows probation.

The Sentencing Guidelines were enacted to ensure that “the crime fit the time.” The

goal was to reduce sentencing disparities. Booker began the slow and seemingly tedious

return to a system where the sentencing judge could view the entirety of the circumstances

including who the Defendant is and not rely solely on the Guidelines. A sentencing judge

could now rely on the sentence provided for in a statute (here probation) and allowed the

sentencing judge to have true input into the sentence that was handed out.

The culmination of Booker is Gall v. United States, 128 S. Ct. 586; 169 L. Ed. 2d 445;

2007 U.S. LEXIS 13083; 76 U.S.L.W. 4009 (Dec. 2007) But for Gall, Tracy would be stuck

with the advisory Guideline position of not being able to receive probation due to his

advisory Guideline range being a Zone C. This Honorable Court would have had to ignore

the statute which allows for probation and would have been required to incarcerate Tracy.

Once this Honorable Court determined the Guideline calculations, realistically the sentencing

would conclude.

The language in Gall is breathtaking. The Supreme Court held that a Sentencing Judge

“may not presume that the Guidelines range is reasonable but must make an

individualized assessment based on the facts presented.” Emphasis added (p. 3) As will be

shown below, a 12 month sentence of probation is appropriate and meets all of the factors

set out in 18 U.S.C. §3553 (a) as well as Gall.

Gall allows the Sentencing Court to use its own judgment and common sense in

determining what sentence should be imposed on a particular Defendant based in part on who

the Defendant is.

Here, the parties entered into a unique Plea Agreement. It is a “take it or leave it” type

of Plea Agreement. After much discussion between the Government and undersigned, it was


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agreed that the “best” sentence would be probation which is set out in the Plea Agreement.

The undersigned ran the advisory Guidelines and came up with the Total Offense Level

contained in the PSR. The undersigned believes the Government did this as well. After

reviewing the elements of 3553(a), the parties concluded that because the statute allowed for

probation that this would be the best sentence. In order to satisfy the requisites of the Plea

Agreement, both parties will undoubtedly join in a variance/departure if needed.

As will be shown below, Tracy has already paid the price for what he did. Pre-Gall,

the best sentence Tracy could hope for would be Zone C 10 month sentence. Post-Gall, this

Honorable Court can vary from this draconian Guideline sentence and vary/depart

downwards to a sentence of probation, which the parties agreed to.

B. 18 U.S.C. 3553(a)(1)

At page 22, Gall lists and discusses the seven factors that a Sentencing Court must

consider. The first factor is a broad command to consider "the nature and circumstances of

the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1).

It is the undersigned’s position that Tracy comes out ahead on this point.

One man’s treasure is another man’s trash. The undersigned has difficulty

understanding the lure of digging up Indian artifacts, and using them for household

decorations. However, it was a passion of the Chilton family. The Chiltons organized

family outings where they would dig up arrowheads and other Indian artifacts.

It is crucial to point out that this case does not involve major destruction of a National

Park or any sort of excavation of Indian artifacts. If it did the U.S. Attorney’s office never

would have agreed to probation. The offense consisted of the Chiltons going to a National

Park with gardening tools and scraping the ground for artifacts. Had they done the exact

same thing in their backyard, no federal crime would have been committed.

So, the nature and circumstances of the offense is pretty straightforward. The

Chiltons’ crime was performing their hobby in a National Park. They did not dig up Indian

burial sites nor did they cause damage to the Park by digging massive holes looking for


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artifacts. The undersigned is not trying to be clever regarding what transpired. Obviously,

damage was done to a National Park, but the damage was not so severe that it amounted to

permanent destruction.

Regarding the characteristics of Tracy, he graduated from high school, joined the

Marines was honorably discharged and returned to rural Missouri. He met his former wife

and became someone he isn’t proud of. He was charged with a meth. crime. Since this

conviction 15 years ago, Tracy has an unblemished record. That in and of itself speaks

volumes about Tracy’s positive characteristics. Tracy made a horrible mistake 15 years ago

an since then has “gotten his life back together.”

Tracy became a father. He had to choose between being a father or a “meth-head.”

He chose his children. He divorced his wife and tried to make a new life. Tracy is poor and

works as a roofer in St. Louis or elsewhere. Tracy Chilton loves these 2 children more than

life itself. When Tracy is in town, he takes his kids to school every day. He attends every

parent/teacher conference. When Tracy is not financially able to stay in St. Louis, he drives

6 hours round trip to work in St. Louis as a roofer in 110 degree temperature to support his

family.

This misdemeanor case has torn Tracy and his family up. The undersigned has had

the benefit of sitting down across from the Chiltons and seeing the impact this case is having

on them. The undersigned has had the benefit of seeing Tracy’s two well behaved young

children at his office sitting for over 2 hours on 2 separate occasions not making a peep. The

undersigned has had the benefit of seeing a grown man cry like a baby because of the

repercussion his actions could have on his children’s lives.

If Tracy loses his children, his ex-wife will receive full custody and they will reside

full-time with her. Attached hereto and marked Exhibits A&B are letters from his daughter

Jerika and their counselor Lisa Coleman. While they are self-explanatory these letters show

how traumatic it would be for the children to reside full-time with their mother. This in and

of itself is cause for a variance/departure to probation.


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As witnessed by Exhibits C & D, when residing with Tracy and Rhonda, the children

attend school full-time and receive good grades.

Rhonda Chilton is a wonderful woman. She has a variety of ailments and thanks to

her, Tracy was able to raise his two children. The 3 or 4 times the undersigned met with

Tracy and Rhonda he observed a loving couple traumatized with this case. Incarceration

would mean Tracy would lose his parental rights and his children would be with their

biological mother.

Something obviously happened between Tracy and Rhonda. The undersigned cannot

comment on Rhonda’s allegations but would simply state that Tracy was not arrested and

Rhonda never pursued the order of protection which she originally sought. Had something

truly happened Tracy would have been arrested and/or Rhonda would have continued with

the order of protection. Tracy denies the allegations Rhonda made, but is not able of

proving a negative.

The history and characteristics of Tracy are summed up by a man who made a

mistake, but a man who loves his children. His life is currently in turmoil because of this

case, and one hopes that once he is sentenced on October 16, 2013 that the nightmare will

end and his personal life will return to tranquility.

The second factor requires the consideration of the general purposes of sentencing,

including:

"the need for the sentence imposed --

"(A) to reflect the seriousness of the offense, to promote respect for the law,and to provide just punishment for the offense;

"(B) to afford adequate deterrence to criminal conduct;

"(C) to protect the public from further crimes of the defendant; and

"(D) to provide the defendant with needed educational or vocational training,medical care, or other correctional treatment in the most effective manner." §3553(a)(2).


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The bottom line for any sentencing imposed is to ensure that the Defendant has

learned their lesson, won’t break the law again and become a productive member of society.

Starting with (c), protecting the public from further crimes of the Defendant assumes

that there will be further crimes. By agreeing to plead guilty and be placed on one year of

probation, Tracy showed he was willing to be placed on as tight a leash as this Honorable

Court deems just. Because of what this case has done to Tracy’s personal life, it is

implausible to think that he has not learned his lesson. One cannot fathom Tracy Chilton

ever entering into a National Park and removing Indian artifacts.

Subsections (A) and (B) are the difficult hurdles to clear. Requesting what might be

considered a “light” sentence seems to be contrary to just punishment and deterrence. The

argument will go that if Tracy gets off easy, no message will be sent to others similarly

situated who might take artifacts from a National Park.

The carrot and stick analogy seems to fit. Each crime and Defendant have their own

unique set of circumstances. A Defendant who is “doing life on the installment plan”

because they constantly break the law and for whom prison is a home away from home

needs the stick.

The question is how big does the “stick” need to be to ensure just punishment? For

example, how is it possible to quantify the fear that someone like Tracy has of going to

prison? How is it possible to quantify the humiliation and degradation that Tracy’s family

has been caused as a result of his actions? How is it possible to quantify the stress and

anxiety that Tracy has felt since this investigation commenced? How is it possible to

quantify what it means to a father like Tracy who because of his actions knows that his

children might be removed from a warm and loving environment and placed with their

mother?

A lot of people, would say that Tracy should have thought of that before becoming

involved in any criminal conduct, even a misdemeanor like exists here. That’s a fair point.

At the same time though post-Gall these seemingly small matters figure into the just

punishment and deterrence equation.


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The third factor § 3553(a)(3) pertains to the kinds of sentences available and is a

perfect seguey regarding just punishment and deterrence. Gall discussed PROBATION

which to a casual observer is viewed as “getting off easy.” Gall held:

“We recognize that custodial sentences are qualitatively more severe thanprobationary sentences of equivalent terms. Offenders on probation arenonetheless subject to several standard conditions that substantially restricttheir liberty. See United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587,151 L. Ed. 2d 497 (2001) ("Inherent in the very nature of probation is thatprobationers 'do not enjoy the absolute liberty to which every citizen isentitled'" (quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164,97 L. Ed. 2d 709 (1987)). 4 Probationers may not leave [*596] the judicial district, move, or changejobs without notifying, and in some cases receiving permission from, theirprobation officer or the court. They must report regularly to their probationofficer, permit unannounced visits to their homes, refrain from associatingwith any person convicted of a felony, and refrain from excessive drinking.USSG § 5B1.3. Most probationers are also subject to individual "specialconditions" imposed by the court. Gall, for instance, may not patronize[***19] any establishment that derives more than 50% of its revenue from thesale of alcohol, and must submit to random drug tests as directed by hisprobation officer. App. 109.4 See also Advisory Council of Judges of National Council on Crime andDelinquency, Guides for Sentencing 13-14 (1957) ("Probation is not grantedout of a spirit of leniency . . . . As the Wickersham Commission said,probation is not merely 'letting an offender off easily'"); 1 N. Cohen, The Lawof Probation and Parole § 7:9 (2d ed. 1999) ("The probation or paroleconditions imposed on an individual can have a significant impact on boththat person and society . . . . Often these conditions comprehensively regulatesignificant facets of their day-to-day lives . . . . They may become subject tofrequent searches by government officials, as well as to mandatory counselingsessions with a caseworker or psychotherapist").”

Here, the PSR in following the advisory Guidelines has concluded that incarceration

is mandated. Under Gall, incarceration is no longer mandated. It is wholly unfair to take

the position that the only just punishment is imprisonment so as to act as a deterrence to other

Defendants who remove Indian artifacts from a National Park. To follow this approach


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would violate the legislative history to Section 3553 (a) where a Sentencing Court should

not show a preference for one purpose of sentencing over another.

The fourth and fifth elements discuss the Sentencing Guidelines and policy statements

and have been thoroughly discussed above.

3553(A)(6) deals with "the need to avoid unwarranted sentence disparities.” Simply

stated, the notion of “unwarranted sentence disparities” in a case like this is not applicable.

Tracy Chilton obviously knew it was illegal to hunt Indian artifacts on Government land. He

incorrectly assumed he would be “ticketed” or charged with misdemeanors as had happened

previously. In cases like this, it would be unwarranted for Tracy to be sent to prison while

others similarly situated were not. Again, this is something the U.S. Attorney’s office

weighed in recommending probation. Tracy has certainly now received the

message—DON’T search for artifacts at National Parks.

Preceding the 3553 list is a general directive to "impose a sentence sufficient, but not

greater than necessary, to comply with the purposes" of sentencing described in the second

factor. It has been discussed in Gall, probation can be deemed a sentence which is not

greater than necessary to comply with the purposes of sentencing.

Conclusion

As in all sentencings, the judge has the extraordinarily difficult task of deciding how

to find the “middle ground” to sentence a Defendant. Here, is the probation recommended

by the parties satisfactory?

This case has shredded Tracy’s personal life. He is keeping her family together by a

thread. The undersigned has developed a great deal of respect and appreciation for Tracy &

Rhonda Chilton. It has been hard getting to know someone like Tracy realizing the impact

this case has had on his two children. But for these crimes, in the past 15 years, Tracy has led

an unblemished life, focusing solely on his family.

For the foregoing reasons, Tracy Chilton requests that this Honorable Court follow

the recommendations of the Plea Agreement and sentence him to 12 months probation.


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TRACY CHILTON

STOBBS LAW OFFICES

BY:

/s/John D. Stobbs II

John D. Stobbs II, NO. 43052

E.D.Mo. Number 40623

Attorney for Defendant

307 Henry St. Suite 211

Alton, Illinois 62002

Telephone: (618)462-8484

FAX: (618)462-8585

Email: [email protected]


mailto:[email protected]

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CERTIFICATE OF SERVICE

I hereby certify that on October 1, 2013, a copy of the attached Defendant’s

Sentencing Memorandum and Motion For Variance was filed electronically with the Clerk

of the Court to be served by operation of the Court’s electronic filing system upon the

following:

Mr. Keith Sorrell

Assistant U.S. Attorney

555 Independence

Cape Girardeau, Missouri 63703

STOBBS LAW OFFICES

/s/ John D. Stobbs II

Attorney for Defendant

307 Henry St. Suite 211


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Alton, Illinois 62002










Documents

MOTION FOR VARIANCETRACY CHILTON, )) D e f e n d a n t. ) DE FE NDANT'S SENTENCING MEMORA UM AND MOTION FOR VARIANCE I nt r oduc t i on Tracy Chilton will be sentenced on …